01A31922
10-23-2003
Spencer T. Montgomery, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency Appeal No. 01A31922 Agency No. 01-68836-002 Hearing No. 360-A2-8619X
Spencer T. Montgomery v. Department of the Navy
01A31922
October 23, 2003
.
Spencer T. Montgomery,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency
Appeal No. 01A31922
Agency No. 01-68836-002
Hearing No. 360-A2-8619X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that complainant, a Materials Expediter, WG-5,
at the agency's Fleet & Industrial Supply Center Detachment, Corpus
Christi, Texas facility, filed a formal EEO complaint on April 12, 2001.
He alleged that the agency had discriminated against him on the bases
of race (African-American), color (Black), disability ( right-side
paralysis), and reprisal for prior EEO activity when:
(1) he was suspended for 5 days for a work-related motor vehicle accident
in September 2000;
(2) he was suspended for 3 days for a safety violation in November 2000.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ).<1> Following a hearing, the AJ issued a
decision finding no discrimination.<2>
The AJ concluded that complainant did not established a prima facie
case of reprisal because he failed to show that his supervisors were
aware of his protected activity prior to taking the actions at issue.
He further found that complainant failed to establish that he was an
individual with a disability within the meaning of the Rehabilitation Act.
The AJ determined that the agency articulated legitimate,
nondiscriminatory reasons for its actions - namely that there was an
adequate basis for suspending complainant due to his actions which caused
a vehicle accident. Additionally, the AJ found that there was no showing
that employees who complainant claimed were treated more favorably when
they were disciplined for vehicular accidents, had the same supervisors
who recommended disciplinary action or the same disciplinary history as
he had.
In his consideration of the second suspension of complainant for failing
to follow safety procedures, the AJ concluded that the agency's reasons
for suspending complainant were legitimate. Although he noted that a
suspension was a harsh penalty for complainant's failure to wear a seat
belt, the AJ decided that the agency based its discipline, in part, on
complainant's history of infractions for which he had been reprimanded
or warned in the past. According to the AJ, this also adequately
explained the lesser discipline that another employee received for the
same infraction at the same time. According to the record, this employee
had not been counseled or given warnings for infractions in the past as
had complainant.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred because he failed to
apply the proper standard and that complainant satisfied his burden
of proof by demonstrating disparate treatment based on complainant's
membership in various protected classes. Complainant contends that
the agency failed to articulate a legitimate reason for treating him
differently than other employees outside of his protected classes, and
that the Commission should find that the agency discriminated against him.
The agency argues that the AJ's determination of no discrimination was
proper and should be upheld.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding and so, will be affirmed if supported
by substantial evidence in the record. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held, meaning
that they are reviewed anew on appeal.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly applied the appropriate
regulations, policies, and laws. For purposes of our review, it is
assumed that complainant is an individual with a disability as that term
is defined by the Rehabilitation Act. Even assuming that complainant
is an individual with a disability, he has not demonstrated that the
agency's suspension of him was based on his disability, his race or in
reprisal for his protected activity. Rather, the evidence reasonably
supports that complainant was suspended because he failed to take the
proper precautions to secure his vehicle when delivering packages.
Complainant acknowledged in affidavit testimony the agency's version
of events leading to the disciplinary action as true. Specifically,
complainant did not dispute that he left his vehicle running and with
the transmission in gear, while he attempted to unload a large parcel.
He further acknowledged that when the parcel contents fell out of its
container hitting the accelerator, the vehicle moved forward and struck
a power box, thereby causing damage to the vehicle. Having acknowledged
these facts, complainant did not dispute that his actions caused the
accident in question.
The testimony of agency managers indicated that in reaching the decision
about the appropriate discipline to impose, they relied on the fact that
complainant had been counseled in the past for his poor performance.
Although complainant contested the fairness of the suspension because he
claimed that others had not been similarly disciplined, he was unable
to demonstrate by a preponderance of the evidence that the agency's
discipline was based on illegal motives. Complainant testified that
he had heard others were treated more favorably when they had similar
kinds of accidents, but he did not come forward with competent evidence
to support his contention. Therefore, the Commission finds the AJ's
conclusion that the agency did not discriminate in this instance,
was reasonable.
Turning to the agency's second suspension of complainant just two months
later, for his failure to wear a seat belt while riding in an agency
vehicle, we conclude that the AJ's decision is supported by the record.
Although complainant contested the agency's basis for the suspension based
on the fact that he was wearing a seat belt, he did not come forward with
any evidence other than his own statements, to controvert the agency's
conclusion. Thus, he was unable to demonstrate by a preponderance of
the evidence, that the agency's reasons could not be believed and were a
pretext to hide discrimination. For these reasons, we conclude there is
no basis to disturb the AJ's decision, as it is supported by the record
and it is affirmed. Accordingly, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 23, 2003
__________________
Date
1The Commission noted that the responsible
management official for deciding the discipline was also the EEO official
charged with accepting the complaint, a clear conflict of interest that
the agency should have addressed. Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), ch.1-2 (November 9, 1999).
2The AJ denied the agency's Motion for a Decision without a Hearing.